Latest Liberal political Supreme Court Appointee may decide not to apply the law.

By Howard Anglin
Huff Post Canada
Oct 22, 2016

"Supreme Court judges ordinarily make law, rather than simply applying it." As a description of the current state of Canadian constitutionalism, this is accurate, but stated so baldly by newly-named Justice Malcolm Rowe, it should raise eyebrows.

SCC Justice Rowe

We know Mr Justice Rowe believes this, apparently uncritically, because he wrote it in his job application for the Court, which was released on Monday by the federal government. (I will not dwell on my misgivings about the new process, beginning with the fact that it requires judges to apply for the job, trumpeting their virtues and parading their accomplishments in an unseemly and immodest competition. One can read Mr Justice Rowe's discomfort between the lines of his own application.)

What else do we know?

The first thing to be said is that, by any current measure, Mr Justice Malcolm Rowe is eminently qualified to serve. His varied career, encompassing public service, private practice, and seats on both the trial and appellate courts of Newfoundland and Labrador, puts him squarely in the tradition of past appointees.

Tradition is the right word for the appointment in other ways. While most court watchers confidently predicted an aboriginal appointee, a woman, or both, Mr Trudeau confounded speculation by choosing an experienced, older white man. The traditional diversity markers of region and language won out over more recent preoccupations with race and sex.

For defenders of merit-based appointments it was a good day, while the University of Windsor law professor who penned a self-flagellating op-ed for the Globe and Mail arguing that "white male lawyers have an ethical duty to say no the next time the federal justice minister comes calling" must be quietly sobbing over his forthcoming complaint to the Canadian Judicial Council.

Which brings us back to Justice Rowe's view of the judicial role. To what extent does he believe that social trends, personal preferences, and other extra-legal considerations are appropriate factors for judges to consider when applying the written and unwritten provisions of the Canadian Constitution? And how much deference does he believe courts should give to the constitutional interpretations of the legislative and executive branches?

In his application, Justice Rowe asks "Should the Court lead or mirror a shared sense of Justice?" and answers his own question by saying that "it should lead when the time is ripe to do so." His answer echoes the recent decision of Madam Justice Rosalie Abella in the Saskatchewan Federation of Labour case, where she and four colleagues invented for the first time in Canadian history a constitutional "right" to strike.

Justice Abella went through the motions of justifying the discovery of this novel "right", including some flummery about an invisible "arc" bending "increasingly towards workplace justice", but this was just to fill space. It would have been too bold even for such a creative judge to rest the entire decision on the candid admission early in her opinion that, "It seems to me to be the time to give [the right to strike] constitutional benediction." Never has the term "judicial opinion" been more apt.

In both Madam Justice Abella's blessing of her own timely creation and Mr Justice Rowe's appeal to the time being "ripe" for courts to "lead" society, the important question is not why they think so, but why unaccountable judges with no distinct skill in moral philosophy or policymaking get to decide?

Because a politically-engaged judiciary has so far served the agenda of the progressive establishment, its allies have promoted it in the academy, the courts, and the media as both right and inevitable.

So effective have they been that it is easy to forget that the Constitution itself says nothing about the proper method of interpretation or degree of deference to elected officials. Nor is aggressive judicial supremacy rooted in our legal history: it is actually a quite recent doctrine, more American than Canadian, born of judicial self-regard and perpetuated by political self-interest.

Whatever else one can glean from Justice Rowe's application, his appointment signals continued establishment approval of both the Supreme Court's political ambition and the gelded quiescence of the coordinate branches of government.

For those of us uncomfortable ceding the forum of democratic deliberation to a narrow caste of ex-lawyers, it is possible to imagine a judiciary that does not presume to be a supra-legislature, nosily second-guessing the elected branches' policy decisions. With the appointment of the worthy Justice Rowe, however, it becomes ever harder to imagine how we would get there.